THE AKALI DAL'S DEFENCE in the case filed by Balwant Singh Khera in the Delhi High Court falls back on the Election Commission's refusal to take action against the political party.
While Prashant Bhushan argued that even on the SGPC's own website, an Akali had been described as "one who demands that the Sikh voice is accorded a special political importance and who further acclaims that politics must NOT be wholly divorced from the postulates of religion,” thus falling short of the Constitutional mandate for secularism, the efforts by Balwant Singh Khera to get the Election Commission of India to act have failed miserably.
In 2005, Khera had petitioned the EC and also wrote a series of letters to the Constitutional body mandated to carry out elections in India, claiming that the Akali Dal's position was riddled with illegality, unconstitutionality and violation of fundamental rights. He urged for the party's de-recognition by the EC. The Election Commission claimed that it had no powers to de-register/de-recognize a political party or to even to take up proceedings against a political party for violating terms under S29A (5) of the RP Act 1951, as held by the Supreme Court in Indian National Congress (I) v. Institute of Social Welfare AIR 2002, SC 2158.
Prashant Bhushan contended that as per the Supreme Court judgment quoted by the Election Commission to refuse any relief to Balwant Singh Khera, the EC cannot review an order of registeration of a political party on the grounds that the party has violated the provisions of the Constitution or breached the undertaking given to the EC at the time of registration, but if a political party is found to have obtained the registration by practicing 'fraud' or 'forgery', then the EC surely could have acted.
The Gurdwara Election Commission had not even asked the SAD for a copy of its Constitution. The SAD sent the old copy lest anyone challenges the election on grounds that the Constitution of the party provided to EC makes it a secular party and debars it from contesting the SGPC polls.
Balwant Singh Khera got the response from the EC dated September 20, 2004, and next year obtained the notings through the RTI Act 2005. In January 2007, Prashant Bhushan even went to the Supreme Court, filing a writ seeking a direction to the EC to de-recognise the Akali Dal in view of its violation of the undertaking it gave to the EC. While Bhushan was asked to withdraw that petition and was orally told to approach the EC, the EC issued a non-speaking order in January 2008, saying "the Commission does not find any ground for action as urged by Petitioner." It was only after exhausting this avenue that Khera chose to approach the Delhi High Court.
Also Read: Balwant Singh Khera - The frail man who could prove to be the nemesis of Akali Dal
But throughout this entire period, the Shiromani Akali Dal has conceded certain facts that have only helped Khera's case. In fact, Prashant Bhushan, in his August 3, 2007 missive to the Election Commission of India, (copy with Punjab Today) countered some of the contentions of the Akali Dal made before the EC, by saying that the Akali Dal has indeed admitted "that the SAD did have a second Constitution which they have termed as their earlier constitution adopted by the Working Committee of the Shiromani Akali Dal, that this Constitution did not fulfil the necessary condition as mandated by Section 29-A of the RP Act, 1951, and that this Constitution was sent by the SAD to the Gurdwara Election Commission on November 25, 2003." Further, it will confound anyone to see that the Akali Dal was sending the 1974 Constitution to the GEC in 2003 even when it had submitted a new Constitution to the EC years earlier. Also, the Akali Dal cannot and did not deny that it participates in the elections to the SGPC and DSGMC as a party, and in fact, defends such participation by invoking Articles 25-28 of the Constitution of India. Bhushan says such a defence is "erroneous", since while any citizen (if he is a Sikh) is free to participate in the Sikh Gurdwara elections, a political party vying for state power is not free to do so as this is not a secular activity.
Very interestingly, the 1974 Constitution of the Akali Dal (that the party was forced to change after the 1989 amendment in the RP Act, 1951) bore the name of Giani Ajmer Singh as Secretary, Shiromani Akali Dal as a publisher of the Constitution and was not signed by him. "It was actually authenticated by Parkash Singh Badal as President of the SAD," Bhushan contended before the EC.
If the Constitution submitted to the Gurdwara Election Commission is valid, the SAD is in violation of the Representation of People Act, 1951 and cannot be registered as a political party and may face de-recognition by the EC.
The reason for sending the 1974 version was quite obviously to qualify for the Gurdwara Elections as these can be contested only by Sikh organisations. "If an organization with membership of non-Sikhs were to contest these elections, that would clearly amount to interference by non-Sikhs in Sikh Gurdwara affairs, and it is not permissible under the SGPC & DSGMC Acts," Khera contends.
Most interestingly, the Gurdwara Election Commission had not even asked the Shiromani Akali Dal for a copy of its Constitution. The SAD sent the old copy lest anyone challenges the election on grounds that the Constitution of the party provided to EC makes it a secular party and debars it from contesting the SGPC polls.
Now, the Shiromani Akali Dal is in a cleftstick. If the Constitution with the EC is valid, the party cannot contest the SGPC elections. If the Constitution submitted to the Gurdwara Election Commission is valid, the party is in violation of the Representation of People Act, 1951 and cannot be registered as a political party and may face de-recognition by the EC.
*Dangerous Liasions* Between Religion & Politics.
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